Sessions’s Return to Zero Tolerance Policing Will Not Work

At the end of last month, Attorney General Jeff Sessions issued a two-page memorandum that has the potential to reorient dramatically the direction of the criminal justice system.

The memo directed the deputy and associate attorneys general to review of “all [Justice] Department [DOJ] activities,” including “grant making,” technical assistance and training.

The DOJ awards hundreds of millions of dollars in grants every year, and the scope and incentives built into these grants can have a profound effect on the criminal justice system throughout the country.

We do not yet know how and whether these grants will change, but one clue comes from another provision in the same memo. Sessions has directed his subordinates to re-examine all existing and contemplated consent decrees in place nationwide, including decrees entered into with more than a dozen major police departments across the country.

Although these decrees vary in their particulars, a number identified a systematic and persistent abuse by law enforcement of the power to stop, frisk and arrest members of the public.

The decree with the Baltimore Police Department, for instance, came after a stinging report by the DOJ that found a “legacy of zero tolerance enforcement,” which led to a chronic pattern of unconstitutional stops, searches and arrests.

Unfortunately, Sessions is a big fan of saturation strategies like "broken windows" and "zero tolerance." He criticized the Baltimore decree for its departure from “many proven principles of good policing.”

In fairness, he did not specify which principles he had in mind, but, given the views of the Trump administration, which has publicly supported these strategies, the risk is great that the DOJ will begin to wield its powerful grant-making club to bring saturation strategies back.

In light of this, I thought it was time to revisit territory that is familiar to regular readers but, alas, not to the attorney general.

In the last several essays, I have discussed the promise of place-based, problem-solving approaches to community wellbeing. As I have often described, crime is hyper-concentrated. Year after year, roughly half of all crime in a city takes place at only 4 percent of the addresses or street segments, while a quarter occurs at less than 2 percent.

These hot spots are scattered throughout much of the city, which means that even in the most disadvantaged areas, the vast majority of places are entirely crime-free. Mindful of this, police can focus their energies more efficiently, concentrating on the tiny number of people and places that contribute disproportionately to crime and disorder but leaving the rest of the community unmolested.

The realization that most people and places are completely unassociated with crime immediately casts an unforgiving light on saturation policing strategies like broken windows and zero tolerance. These strategies are designed to prevent neighborhood decline by focusing on low-level, quality-of-life offenses like loitering, public intoxication, possession of a small amount of marijuana and violations of the traffic code.

The theory is that a community’s willingness to tolerate these offenses signals to more predatory offenders that the people living there have lost their capacity for informal social control. By coming down hard on this behavior, police replace informal with formal social control, and thereby prevent the slide into more serious criminal activity. That, at least, is the theory.

Scholars disagree about whether these strategies prevent violent crime, and the evidence is mixed. But no one credibly disputes that saturation strategies have at least one destructive, if perhaps unintended, side effect: They sweep entire communities into the carceral state.

Because low-level violations of this sort are so common (when was the last time you came to a full stop at a stop sign?), police have almost unlimited discretion to stop, search, cite and arrest members of the public, the overwhelming majority of whom will have no involvement with serious criminal behavior.

When departments deploy these strategies, police on the beat are often encouraged to make as many stops as possible, especially when broken windows morphs into its more aggressive cousin, zero tolerance.

In that way, the number of arrests becomes a key metric by which an officer’s performance is measured, which leads to a predictable race to the bottom as police systematically and deliberately devote their precious their resources to the many who are not involved in crime rather than the few who are.

Add to this toxic mix one additional pressure. In some municipalities, the city uses fees and fines imposed by the criminal justice system to pay for key municipal services. This, for instance, was the case in Ferguson, Missouri, where the police were asked to play a dual role as public servant and tax collector.

The net of these strategies is to drive a deep and sharp wedge between the police and the communities they are asked to serve. It is a formula for anger and resentment. Focusing on the few people and places that matter rather than the many who don’t is thus the first step to community wellbeing.

But as I have often stressed, it is not the last step. Often, fixing a troublesome place—like the neighborhood bar where fights seem so common, or the grocery store parking lot that doubles as an open-air drug market—is not necessarily a job for the police. Criminal activity at these places may be merely a product of conditions that exist at the place, and that the police are not best suited to correct.

The bar, for instance, may be in need of more diligent and effective management; after all, there is a reason there is so much trouble at this tavern but none at the bar across the street. The grocery store parking lot may need environmental changes—lighting and street design, for instance, which permit better natural surveillance of the area. Once again, there is a reason drug dealers operate out of this parking lot and not from the lot at the pharmacy down the block.

In both cases, the police may have a role, but it is extremely unlikely that arresting two more drunks in the bar or another drug dealer in the parking lot will solve the problem, especially when this behavior has gone on at these spots for years, as is typically the case.

In short, a city needs to think of crime as a series of more or less unique problems that occur at a very tiny number of isolated spots on the map. Like any persistent social problem, crime does not spring from only one source. Causes run deep and weave together like the strands in a carpet.

We should not be surprised, therefore, when we discover that no single actor in the system can solve the entire problem. The police can be part of the solution, but often their role is peripheral. Other municipal agencies may play a far more prominent part.

And still more important is the community itself, the thousands of people who live and work in a neighborhood and have the greatest stake in its wellbeing. The community can and should speak for itself, but can also amplify its voice when it pairs with the nonprofit sector that provides resources to an underserved area, the community and economic redevelopment teams that bring investment back into inner cities, and the public health professionals who ameliorate the ravages of addiction and mental illness.

We can thus think of saturation policing and place-based problem-solving as two poles on a spectrum. One treats most people as potentially troublesome; the other treats most people as entirely innocent. One ignores the places where crime is concentrated; the other focuses its energy on precisely those places, leaving the rest of the community to go about its affairs.

One approaches a complex social problem with the limited set of tools that only the police can wield—stop, frisk, cite and arrest. The other uses every tool in the toolkit, leveraging every resource and asset a city might have at its disposal.

One enlarges the blue footprint and uses the police to address problems for which they lack the training and skills. One shrinks the blue footprint and reserves the police for those problems that only they can solve.

One makes the problem of policing in America worse. The other makes it better. I fear Attorney General Sessions has chosen the wrong path.

Joseph Margulies is a professor of law and government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.